ORAL JUDGMENT

1. Heard learned advocates appearing for the respective parties through video conferencing.

2. The present petition is directed against order of detention dated 26.01.2021 passed by the respondent No.1 – Director General of Police, in exercise of powers conferred under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as “the NDPS Act”).

3. The short facts leading to the present petition are as under : 3.1 The petitioner is ordered to be detained by order dated 26.01.2021 passed by the respondent No.1 with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order in exercise of powers conferred by Sub Section (1) of Section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as “the NDPS Act”).

4. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground that registration of two offence under Sections 8(c), 20(b) and 29 of the NDPS Act, by itself cannot bring the case of the detenue within the purview of definition under section 3(1) of the NDPS Act. He has contended that the order passed by the authority is without application of mind. To substantiate his argument, the learned advocate for the petitioner has drawn the attention of this Court to Annexure “A”, wherein it is observed by the Director General of Police, CID Crime Branch Railway, Gandhinagar, that the action of the petitioner is against the public order and therefore, he is taken into the custody. He has also drawn the attention of this Court to Section 3 of the NDPS Act, which lays as under :

“3. Power to make orders detaining certain persons.

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(1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.”

4.1 It is contended by the learned advocate for the petitioner that, from the plain reading of the said Section, it is clearly established that the authority is to satisfy itself with respect to any person (including a foreigner) that, with a view to preventing him/her from engaging in Illicit traffic in Narcotic Drugs and Psychotropic Substances, if it is necessary so to do, make an order directing that such person be detained. Such type of satisfaction is missing in the order and under the circumstances, the order cannot sustain.

5. Per contra, Mr. Dharmesh Devnani, learned AGP has contended that the activities of the petitioner is dangerous to the public law and order and the petitioner may repeat such type of offence, if he is released. She has relied upon the notification dated 08.08.2018, wherein it is stated that in exercise of the power conferred under Sectio